The Special Threat of Informants to the Innocent Who are Not Innocents: Producing "First Drafts," Recording Incentives, and Taking a Fresh Look at the Evidence
The most up-to-date version of this piece can be found in the Duke Law Scholarship
Fabricated testimony by informants often plays an important role in convictions of the innocent. In this article, I examine the particularly problematic situation of defendants who are innocent of the particular crime charged but are not strangers to crime. As to such defendants, potential informants abound among crime associates, and they have a ready story line that authorities are preconditioned to accept. Independent proof, which could be an antidote, will predictably be lacking. Indeed, that the informant has exclusive, critical knowledge often leads the prosecution to offer particularly tempting deals. I focus on the case of Lee Wayne Hunt, who is likely an innocent man condemned to spend his life in a North Carolina prison. Hunt, who was the head of a drug distribution ring, was convicted of apparently drug-related murders exclusively by the testimony of informants. The strong reason to believe he is innocent comes from confession of sole guilt by an alleged co-participant made to his lawyer before his own trial for the murders, a confidential communication revealed only after the client's suicide. Remarkably, relief has been refused. To reduce the dangers of fabricated informant testimony, I propose requiring the recording "first drafts" of informants' stories and documenting the full extent of promises made or assumed. Procedures should also be developed for independent prosecutorial review of the evidence before trial in any case that depends critically on informant testimony and after conviction upon a credible showing of innocence.
Date of Authorship for this Version
Mosteller, Robert P., "The Special Threat of Informants to the Innocent Who are Not Innocents: Producing "First Drafts," Recording Incentives, and Taking a Fresh Look at the Evidence" (2008). Duke Law School Faculty Scholarship Series. Paper 118.